Friday, March 4, 2011

IS THERE NEED FOR PROTECTION? / Part 467 / For Love and For Justice / Zabeth and Paul Bayne

This was a thirty-nine page ruling. (Judge Crabtree's actual wording is in quotations. Everything else is my understanding of the statements for the ruling.)

Judge Crabtree expressed that the case was before his court because the Director applied pursuant to s.41 (1) (d) that the three children, Kent, Baden and baby Bethany, be placed in the continuing care of the Province. Judge Crabtree aptly stated that the primary issue to be determined in this case was how the baby Bethany at age approximately seven weeks, was injured. He cited the relevant legislation, that is the guiding principles of the Act (The Child, Family and Community Services Act), its section on the best Interests of the Child, its sections pertaining to the required orders to be made at protection hearings, and then the application of these sections specifically to the Bayne Case. Judge Crabtree indicated that the baby suffered injuries ...

Judge Crabtree indicated that the baby suffered injuries while in the parents' care and that the court case intended to resolve what happened to her, that is uncover the circumstances by which she incurred the injuries. He indicated that the Director submitted that given the unexplained nature of the injuries, all three children were at risk to be physically harmed by the parents through their failure to protect them or through neglect. Therefore the Director maintained the children are in need of protection.

Of course the Baynes and their supporters for the past many months have been anxious to know whether Judge Crabtree agreed with the Director's assessment. On Tuesday March 2nd, we learned that he did, and we also learned his reasons.

The Document recited the chronological events in great detail, (Points 13-89). Even for one familiar with the story details, the specifics that the Judge heard throughout the court case, and the material that he processed is gripping. These will be posted in a later blog entry. Then Judge Crabtree rehearsed every detail of the significant body of medical evidence presented in court, assessed the weight of their evidence and opinions and he drew his conclusions on that which he believed or rejected. This is an extensive portion of his report (Points 90-165).

Then the judge wrote to address the all important question “Are the Children in Need of Protection – The Test” and he covered this in points 166-172. The test to which Judge Crabtree referred was another case dealing with unexplained injuries, that of British Columbia (Superintendent of Family and Child Services) v. G(C) [1989] B.C.J. No. 1577 (B.C.C.A.), and of course a subsequent ruling. There are enough similarities between that case and the Bayne case that Judge Crabtree could use it as precedent in helping him to make a judgement about need of protection. In the cited case, two twin baby girls aged 7 months were both found with injured ribs. While the parents had an explanation, the doctor believed this was a non accidental injury. The judge in that case was not assigned to determine blame but rather, in consideration for the safety of the children, whether they should remain in the care of the parents or the temporary care of the Superintendent. The children were placed in the Superintendent's care.

Judge Crabtree cited several other cases each of which supported the position that if the need for protection is proven to a requisite standard, even if it cannot be proven who perpetrated the harm, the ruling must favour the protection of the child. A requisite standard is not evidence beyond reasonable doubt but as little as ten percent risk of future harm. Judge Crabtree concurred that on the balance of probabilities, the interests of the child are of such importance that the lower test is appropriate. He deemed this amount of risk is in evidence because of the unexplained injuries to the child while in the care of the parents.

My Concern is two-fold: It is common for a judge to rely upon previous judgements in similar cases, but no two cases are identical, and the cases cited by Judge Crabtree, while relevant, do not speak to children with issues born of prematurity. That could be an unfortunate oversight. Second, although Crabtree does not assign blame, a number of you commenters, without the benefit of the judge's information, appear to be doing that - but of course, anonymously! He at least signed his name to his comments.

15 comments:

This gives the judge and everyone an "out". It gives them a way to give your child back if you can meet or satisfy "certain" things within that 6 months. I feel you will still get these children back as you deserve.

Morning Ron. I will make a short comment today, because I haven't had my brekky and I want to write a major article for publication. I have read most of the judgement and here is a brief impression This is not a judgement,it is a vacillation. I learned more about Judge Crabtree than I did about the Baynes. He has no sense of context.He gets his nose so close to the detail that he cannot see the whole picture. He has little understanding of people and when it comes to the quality of mercy, he ain't no Portia. He cherry picks the law and he cherry picks the evidence to support what he wants to do. His bias is diguised, but it is there. So after all this time we find out that he cannot make up his mind. His judgement is a copout. If he ruled for the Baynes he would really dump Bruce and co into the outhouse. Chief judges don't do that. At the same time he knows perfectly well that the Baynes are no child abusers, but sacrifices them for the sake of expedience. He still throws them some sort of lifebelt by telling them to work it out with the ministry. The lamb should work it out with the wolf. He glosses over all inconvenient points of law such as timeliness and continuity of care. The fact that all reasonable time limits have been shattered. Children's lives are sacrificed to quibbles on the percentage of risk.CCO guidelines are clear. The evidence must clearly show that the parents are so unfit that they must never have care of a child again. He cannot bring himself to say that. The best he can do is to say that he does not know if the injuries were accidental or not. Even if there is a possibility that they were non accidental, there is a degree of risk, however small and therefore he supports the ministry. Pathetic,timid and with total disregard for the best interests of the children. He must know that his vacillation has caused a new babe to be snatched from a loving mother's breast. I hope it leaves him uneasy.

Going through the ruling myself, I am of the opinion the judge acquired the transcripts of the entire trial and went through these with a fine-toothed comb. I rather suspect the bulk of the reason for the multi-month delay is because it takes considerable time to convert audio to searchable text by court transcribers.

The Rahman case which was appealed and won, was far worse than the Baynes case. It is not that difficult to find judgments that support a decision, and this appears to me to be the case here. This ruling is a perfect example of cherry-picking information to lead the reader to agree with the ruling and the logic. It is an example of the victor writing the history books.

A 10% threshold of possibility of harm to the children as justification to find in need of protection, this is a new one on me. By this criteria, every parent out there is at risk of having their children removed with this criteria. If a child burns a hand on a stove, remove. If a child trips out of sight of the parents, remove. Just in case.

As Ray Ferris said, Crabtree's order does not exist in the CFCSA: a 'CCO that has a 6-month expiry' is in reality a 6-month interim custody order. A TCO, or Temporary Care Order. A CCO by definition is a belief the parents are beyond redemption. The CFCSA is very clear in differentiating the two. Crabtree's order is not clear.

Crabtree inquired about a "last chance" order during Jensen's closing argument, and this is exactly what he delivered. Along with a clear message that, if the parents did not give in to the whims of what services MCFD wanted to impose, the Baynes would lose their child permanently to a REAL CCO. MCFD can now sit on their haunches, gloat and not offer anything, or delay any offering for months, which will then be used to justify an easy renewal of the TCO further. Another two years minimum, is my estimate.

Where is the communication from Ministry in writing from day one that the specific service they wanted the Baynes to complete would result in the return of their children in 6-months.

The Ministry adopted this stand that the parents were beyond redemption and not worthy of services since delivering this announcement and document to the Baynes their CCO in February 2009.

It wasn't until just before the birth of Josiah McNeil personally wrote the Baynes a letter that offered unspecified "services" and a "polite" request to undergo a parental capacity examination or Josiah's safety would be assessed.

It should be noted the Baynes the Baynes did not refuse the PCA examination when the point came up, they simply wanted to agree on a suitable psychologist. They did not want to have to endure the "risk assessment" debacle where they were painted poorly for the sole purpose of deprecating them as parents, for the motive of justifying lengthy MCFD intervention and a CCO.

Parental cooperation was NOT requested in order for Humeny to complete and present his risk assessment to the court. This is standard procedure with most parents.

Three CRA's were done on me without my knowledge or participation. I have yet to see two of my three CRAs, and I got all my children back free and clear.

Crabtree puts in his report the family outright refused both the PCA and "participation" in the risk assessment. This is in Finn Jensen's closing argument but this is not reality.

The judge very conspicuously omits the fact the risk assessment that was done by Humeny was in reality a brutal character assassination, in which His Honour made a ground-breaking ruling that Humeny reveal his source of information, saying the justification for this was because it was unrelated to a child protection matter.

Crabtree also made a ruling, also omitted from his judgment, that publicity would not be squelched. CBC's first coverage stated they were muzzled, when in fact, the specifics of this case were completely open to the media to report the names of children and the parents and details of the proceedings.

There is also no mention of Crabtree ruling for in-home visits, and doubling up of visitation time. Recall that this point was vehemently resisted by MCFD, and is an order which remains in effect. This alone is a sign Crabtree believed early on that the parents were redeemable, while the Ministry did not.

The judgment reveals none of the Hoffman's back-stabbing efforts of trying to convince the police the Baynes suffered from Munchausen by Proxy. CBC reports it in their story. Jensen omitted it from his 3-day summary.

A 9-page misnamed chronology section shows a suggestively derogatory history of the Baynes parenting. The reader is supposed to be appalled and question the parenting competency of the Baynes.

There is the observation the complaint originated by the Hoffman's a full week after the agreed-upon date of Bethany's unexplained injury. This is not "history" this a build-up of removal justification because the Baynes DID NOT HAVE a relevant derogatory history as parents.

Crabtree's extensive citation of the Baynes premature birth is used as a leadup that justifies the removal of three children due to the now-bogus shaken baby diagnosis.

There is not one ounce of credit apportioned to the Baynes for their monumental, and very successful efforts to raise premature children.

Finn Jensen in his 3-day closing argument (Crabtree omitted this small fact as well) left it up to the judge to decide what services to impose. The judge, in his ruling snapped this ball back into the Director's court. Apparently, neither of these institutions have any idea of what exact services are suitable to correct the Baynes supposed deficiencies in parenting.

The tone of this ruling throughout is unmistakably suspicious of the parents and deferential to the Ministry. Material that has NOT appeared in this ruling, to me, is simply astounding. 40 pages is a weekend worth of work, not five months. I can paste in verbatim rules of the CFCSA as well and NOT conspicuously omit section 43 that mentions maximum times in care.

The grandparents. Why, as one commenter posted earlier, are they not being considered to care for the children as opposed to forcing the taxpayer to shell out an estimated $10,000 monthly for foster care and 28 hours of supervision?

We have heard the views of Vicky, the past foster parent and testimony she was getting something on the order of $6,000 monthly PLUS a nanny to help care for the Baynes children. I daresay even a small portion of that offered to the Baynes early on when MCFD declared that being poor was endangering their children would have helped.

Perhaps the current foster home can respond and correct my cost estimate on the tax-free income they are receiving. This, after all, should be public knowledge.

In any case, the ruling alludes to the grandparents unsuitability due to to them allowing a media shoot inside their home in May of 2008, violating the children's privacy. This was Humeny's concern that is noted, but not questioned by the judge. There is no mention of such a restriction in the mediation agreement.

I've only read part of this ruling, but had to respond to this initial assessment. I wish I had the trial transcripts as well to do better justice with writing an opposing view.

NOTHING CAN BE FURTHER FROM THE SCIENTIFIC TRUTH. Biomechanics principles are at the heart of this issue and ought to handled by those with appropriate education, experience and training. Neither medical doctors nor law enforcement professionals receive advanced biomechanics instruction as part of their education, yet they confidently offer determination of injury causality (a sub-specialty of biomechanics) on the basis of their admirable faith in the protection of children.

As an example of this misunderstanding of biomechanics principles, Dr. Robert Block, MD, FAAP - President Elect of the American Association of Pediatrics recently misstated Newton's Second Law in his keynote address at the recent 11th International Conference on Shaken Baby Syndrome where he proclaimed that "M=FA may be true, but ..." This statement is a forgivable error for a medical doctor, who's knowledge and skill ought to remain with clinical tasks for which he certainly received appropriate training, but must also be recognized as a cry for the incorporation of a biomechanist as an investigator working with child protective teams in any determination of injury causality. Afterall, a medical doctor wouldn't opine as to exchange of velocity between two vehicles in an automobile accident and how the resultant occupant kinematics might be potentially injury-causing, so why then do medical doctors believe that they are qualified to determine injury causality in cases of alleged infant shaking?

I was reading an MCFD case online (at canlii.org) and googled the MCFD lawyer - a woman, can't remember her name. But it turns out she used to work for Judge Crabtree when he was a lawyer, and her specialty has always been "child protection." In other words, Judge Crabtree worked with (in his previous law firm), if not hired (and is no good still good friends with) an MCFD "child protection" lawyer.

Anonymous 7:56 etc, thank you for your excellent and well written comment. You have given me a clear overview of the whole scenario. Ron you are doing the Baynes and all the rest of us a great service with your exceptional writing and hosting of this blog! Thank you.

Good analysis all you writers. There is a raft of stuff that Crabtree chose to ignore. I have a lot of inside information on the evidence and the arguments. He lightly dismisses contrary witnesses as not credible, without adequate reasons. This could easily be won on appeal, but would the cost and delay be worth it? I doubt it. When I discussed this case with Doug Christie, I told him that the only rational and logical verdict could be a return to the parents. He asked me what made me think that the ruling would be rational. He said it was going to be political. I bet a hundred bucks and I lost it. Now I have to reasons to grieve.

Doug Christie obviously isn't a gambler but an astute observer of the state of our justice system in Canada. What wonderful comments today concerning the details and specifics of this case. You are a great team and do a great service for the public here. Thanks!I have been reading some articles filed on injustice busters regarding the David Milgaard fiasco. Leader Post Regina Mar 2006 article by Betty Ann Adam p.A 7 gives various comments by Serge Kujawa, director of public prosecutions. One thing he really hated was the involvement of the media in reporting on legal matters regarding Milgaard. The man has attitudes which run against the processes which bring true justice. Further, he really hates us to know those attitudes.

Also, quoting Ron Unrau in the above blog post: "Judge Crabtree cited several other cases each of which supported the position that if the need for protection is proven to a requisite standard, even if it cannot be proven who perpetrated the harm, the ruling must favour the protection of the child. A requisite standard is not evidence beyond reasonable doubt but as little as ten percent risk of future harm. Judge Crabtree concurred that on the balance of probabilities, the interests of the child are of such importance that the lower test is appropriate. He deemed this amount of risk is in evidence because of the unexplained injuries to the child while in the care of the parents."

I find it 'interesting' that Judge Crabtree did not at all consider that retaining the kids from a loving parental home IS "future harm". If there is a 10% risk of parental abuse (which of course none of us believe ever occurred in the Bayne home), then let's fill in the remaining 90% as the likelihood that these kids have been and are even now enduring emotional, mental, and psychological harm by being kept from their parents.

I personally believe that they will heal, because I believe the Baynes, their support community and their belief in God will sustain them and even heal them once their family is reunited. But that does not excuse the MCFD and Judge Crabtree for not having considered the harm done to children when they are forced to remain in foster care (no matter how wonderful the foster parents--and I do know there are some great foster parents out there).

"I rather suspect the bulk of the reason for the multi-month delay is because it takes considerable time to convert audio to searchable text by court transcribers."

I don't think this was the reason for the delay because court transcripts are generally done day by day and are either available shortly thereafter (the day) or in real time. Lawyers who can afford it (or rather clients who can afford it) get real time transcripts which are typed out as the evidence is given. This is quite an advantage, and possibly one that the Ministry, with its limitless resources, had and has.

The reason for the delay in judgment is, as far as I'm concerned, because the judge had to figure out how to do MCFD's bidding while at the same time calculating a way to avoid public wrath. It worked, because most people have been duped into believing that in 6 months the Baynes will have their children back. I wish this would come to pass, but after this judgment, I much doubt it.

We are dealing with something far more sinister than even cynical me surmised. And therefore the only way to beat this beast - the only hope - is via appeal and / or massive media coverage which exposes these child destroyers for what they are.

I have zero respect for Crabtree, after what he has done to these parents, their children and any other child or family that will be affected by this grotesque ruling. The suffering these judges cause is just obscene.

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Ambition to be a graphic artist was displaced 50 years ago by a plan to study theology and to engage in altruistic service. Art became my pastime as visual images conceded to word pictures. I acquired Master’s and Doctoral degrees along the way. A career consisting of 34 years as a pastor and 6 years as a denominational executive concluded in ‘08. My faith and principles remain firm as I paint and write.